Individual Rights & Civil Liberties: State Action, DP, EP, Takings, 2nd Am Flashcards
individual rights governing rule and two key inquiries (trigger and scope)
• governing rule: The U.S. Constitution sets a minimum level of protection for individuals; states are usually free to grant broader protections (e.g., a state may go further and require large private shopping centers to permit persons to exercise free speech rights on shopping center property).
– A. Who is bound by these constitutional provisions? (i.e., the “state action” doctrine)
– B. Do these provisions apply to all governments—federal, state, and local? (i.e., “incorporation”)
state action rule and 3 subrules
• The Constitution applies only to government action; it does not apply to government inaction. Moreover, the Constitution generally does not apply to the actions or inactions of private individuals and companies.
– 1. Congress may, by statute, require private individuals to conform to constitutional standards
– 2. There are some instances where private individuals and companies will be considered “state actors” subject to the 14th Amendment:
• if a private person or company is performing a traditional, exclusive government function (e.g., operating a company town or conducting a primary election)
• the government affirmatively authorizes, encourages, or facilitates an unconstitutional activity; for example:
– court enforcement (equitable or legal) of a racially restrictive covenant in a deed or lease
– peremptory challenges (civil and criminal)
– the government leases space to a business that discriminates
– a private association that regulates high school athletics with mostly government members and funding
– 3. A private company or association will not be considered a “state actor” solely because:
• The government provides its funding, even 99% of its funding
• The government has licensed the company
• The government has approved the company’s name and charter
• The association has government members
• The government regulates the company
• The company is working under a government contract
incorporation (rule and why its relevant)
• By it terms, the Bill of Rights applies only to the federal government. The Supreme Court, however, has held that all of the Bill of Rights have been incorporated into the 14th Amendment and thus made applicable to state and local governments, except for the:
– Fifth Amendment’s right to a grand jury in a criminal case
– Seventh Amendment’s right to a jury in a civil case
due process generally (where found and what it comprises)
• 1. There are two due process clauses in the Constitution. The due process clause of the 5th Amendment applies to the federal government, and the due process clause of the 14th Amendment applies to state and local governments. The two clauses have been construed identically.
• 2. Due process has two parts: procedural due process and substantive due process.
– A. Procedural Due Process requires the government to use a fair process and procedures before depriving an individual of life, liberty, or property (i.e. notice and opportunity to be heard)
– B. Substantive Due Process is designed to ensure that laws are reasonable and not arbitrary (by protecting fundamental rights)
PDP - premise; 3 elements and what they trigger
– premise: before the government may deprive an individual (not a group) of liberty (i.e., freedom from confinement) or property (e.g., government job, government benefits, government license), the government must give the person notice of termination (including the reasons for termination) and some form of hearing.
– Elements:
• individualized deprivation
• intentional/purposeful government action
• life/liberty/property interest
• these trigger: meaningful notice and opportunity to be heard by a neutral decisionmaker
SDP (level of scrutiny, fundamental rights, examples; when does rational basis kick in?)
– If a law DIRECTLY AND SUBSTANTIALLY IMPAIRS a “fundamental right,” the court will apply Strict Scrutiny and the law will probably be invalidated. Fundamental rights are those rooted in the history and traditions of America. They include not only those rights enumerated in the Bill of Rights, but also certain implied privacy rights, namely:
• the right to control the education and upbringing of one’s children
• the right to acquire and use contraceptives (regardless of age)
• the right to marry (including same-sex and interracial marriages)
• the right to procreate (no forced sterilization)
• the right to custody of one’s children (e.g., a grandparent visitation law has been found to violate this right)
• the right of family members to live together (includes extended family, but not unrelated persons)
• right to engage in adult, consensual, non-commercial sex in a private setting
• the right of a competent adult to refuse life sustaining medical treatment, hydration, and food
»> a state may require clear and convincing evidence of the patient’s intent to refuse life sustaining medical treatment, hydration, and food
»> there is no right to commit suicide or for assistance to commit suicide
»> a state may force parents to obtain medical care for children
**note: laws that touch upon these privacy rights, but do not necessarily burden these rights (like an age requirement for marriage) will get rational basis review
SDP abortion tests
- Although a woman has a constitutional right to decide to terminate a pregnancy, that right is subject to its own form of scrutiny:
- viability: halfway through pregnancy (so halfway through the second trimester); or approximately 24 weeks
- Test for pre-viability regulations: does the regulation impose an undue burden (i.e., a substantial obstacle) on the woman’s right
- the following regulations impose an undue burden:
- a spousal consent or notification requirement
- requirement that doctor have “admitting privileges” at nearby hospital
- requirement that clinics have hospital-grade facilities
• the following regulations do NOT impose an undue burden:
- informed consent requirements - 24-hour waiting period - requirement that abortions be performed by a licensed physician - parental notice/consent for a minor’s abortion, *****if the law contains a judicial bypass
- Test for post-viability abortions: a state may ban such abortions, as long as there are exceptions for abortions necessary to protect the life or health of the mother
- There is no right to government-subsidized abortions, and there is no requirement that public hospitals perform abortions
SDP when no fundamental right is involved (rule and exception)
– Default (When no Fundamental Right Involved)
• rule: If the government regulation does not interfere with a fundamental right (or abortion), the regulation will be subject to the rational basis test and thus will probably be upheld.
»> **i.e. we use rational basis to prevent “arbitrary government action” – will come up occasionally – usually a losing argument, but it is an argument you can make!!
- Exception: “Grossly excessive” punitive damage awards violate the Due Process Clause
- Punitive damages that exceed compensatory damages by a ratio of more than 9:1 are probably “grossly excessive”
- Punitive damages are less likely to be found excessive if the defendant committed an intentional or reckless tort causing serious personal injuries
three EP fundamental rights based claims
right to vote
right to travel
access to courts
EP fundamental right to vote (examples of valid and invalid restrictions)
• There is a fundamental right to vote in national, state, and local elections; restrictions on voting, other than those based on age (18), residency, and citizenship, are generally invalid
- The following restrictions are invalid:
- a requirement that voters have children in order to vote in a school board election
- poll taxes or educational requirements
- property ownership (except for “water district” elections)
- The following restrictions are valid:
- presentation of government-issued photo I.D.
- proof of residency for a short period (e.g., 30 days)
EP fundamental right to vote (one person one vote rule; exceptions; racial gerrymandering; validity of measuring by “total population”)
One person-one vote rule (e.g., the seats in both houses of a state legislature must be apportioned on a population basis)
- **stricter mathematical accuracy required for federal congressional districts!
- exceptions: appointments of officials and at-large elections are valid (b/c not done by district) as long as not used to suppress minority voting power
- racial gerrymandering must meet strict scrutiny if race was a “predominant factor” in drawing the district’s lines
- states may measure districts by counting “total population” instead of eligible voters
EP fundamental right to vote (candidate ballot fees and racial voting restrictions)
- Ballot fees and restrictions imposed on candidates are subject to strict scrutiny
- Filing fees—even if reasonable in amount—must be waived for indigent candidates.
- Racial restrictions on voting are invalid under the 15th Amendment
- The 15th Amendment requires proof of “purposeful intent” to discriminate on the basis of race
EP fundamental right to travel
- There is a fundamental right to travel interstate and to be treated like a long-term resident once becoming a permanent resident of a state
- Laws that prohibit entering or leaving a state must meet strict scrutiny
- Durational residency requirements are subject to strict scrutiny, but some have been upheld
- one year for welfare benefits: invalid
- one year for subsidized medical care: invalid
- one year to vote: invalid
- one year for a divorce: VALID
- one year for reduced tuition at public universities: VALID
- **do not get this mixed up with privileges and immunities! this is not discrimination against US citizenship or out of state citizenship – EP here deals with in state residents being treated differently because they haven’t lived their long enough
- Benefits that distinguish between long-term and short-term residents are subject to strict scrutiny (and probably also violate the 14th Amendment’s Privileges and Immunities Clause)
- Federal restrictions on international travel are subject only to the Rational Basis Test
EP fundamental right to access to courts
– Laws denying indigents access to the courts where some fundamental liberty interest is at stake have been invalidated, including:
• the fee for a trial transcript, which was necessary for a convicted criminal to appeal
• the filing fee required to initiate divorce proceedings
• the fee charged for blood tests in paternity proceedings
• the fee to prepare the appellate record in a termination of parental rights action
– But courts have upheld fees where no fundamental liberty interest was at stake, including:
• the fee for filing a bankruptcy petition
• the fee to secure review of eligibility for welfare benefits
EP general premise & requirement; reverse incorporation
– The Equal Protection Clause guarantees that similarly situated persons will be treated alike.
– If a law PURPOSELY discriminates against a group, the law will be subject to the equal protection clause of the 14th Amendment or the due process clause of the 5th Amendment for the federal government (i.e., reverse incorporation).
• Can Include (each requires intent to discriminate):
»> Facial discrimination,
»> Discriminatory application, or
»> Disparate impact & discriminatory intent
• If the law does not “purposely” discriminate, it will be subject to the rational basis test.
– The level of scrutiny to apply will depend on what group is being singled out. There are three classifications for equal protection, outlined below.
